In Re National Football League Players Concussion Injury Litigation
775 F.3d 570
| 3rd Cir. | 2014Background
- Thousands of retired NFL players sued the NFL alleging failures to protect against concussion-related injuries; the cases were consolidated in the E.D. Pa. multidistrict litigation.
- Plaintiffs and NFL reached a settlement proposal in 2013–2014 and sought preliminary approval plus conditional certification of a nationwide settlement class and two subclasses to enable notice and a fairness hearing.
- The District Court issued a July 7, 2014 order granting preliminary approval and “conditionally certified” the settlement class for settlement purposes, scheduled a fairness hearing, appointed counsel, stayed related suits, and approved notice.
- Seven objecting retired players filed a Rule 23(f) petition seeking interlocutory review of the District Court’s July 7 order, arguing the conditional certification was improper and that the settlement inadequately protected various groups of claimants.
- The Third Circuit analyzed whether it had jurisdiction under Rule 23(f) to review the District Court’s order and concluded the July 7 order was a Rule 23(e) preliminary settlement-management order, not a Rule 23(c)(1) certification order, and dismissed the petition for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court of appeals has jurisdiction under Rule 23(f) to review the District Court’s July 7, 2014 order | Objectors: the District Court’s “conditional certification” is a class-certification order and therefore immediately reviewable under Rule 23(f) | Respondents/District Court: the July 7 order was a preliminary Rule 23(e) settlement-management order (reserved final certification for the fairness hearing) and not a Rule 23(c)(1) certification order | Held: No jurisdiction under Rule 23(f); the order was a Rule 23(e) preliminary settlement order, not a Rule 23(c)(1) certification order, so Rule 23(f) does not apply |
| Whether “conditional certification” of a settlement class qualifies as an appealable certification under Rule 23(c) | Objectors: preliminary/conditional certification is functionally a certification subject to review | District Court/NFL: conditional language signaled a preliminary determination for notice only; final certification reserved until post-fairness-hearing order | Held: The 2003 amendments to Rule 23(c) and precedent mean courts should not treat preliminary settlement notice orders as final Rule 23(c)(1) certification orders; use “preliminary determination” language instead |
| Whether the District Court abused discretion in preliminary approval procedures (merits) | Objectors: settlement inadequately protects certain subgroups, notice misleading, claims process onerous, lack of discovery, arm’s-length concerns | Respondents: settlement revised to guarantee payment of valid claims and included safeguards; preliminary approval appropriate to give notice and hold fairness hearing | Held: Merits not reached; appellate court dismissed for lack of jurisdiction and did not rule on substantive objections |
| Proper labeling and procedure for settlement-class hearings | Objectors: district court’s label should be treated as certification for review | Third Circuit majority: district courts must avoid term “conditional certification” and instead make clear they are issuing a preliminary determination under Rule 23(e) and reserve Rule 23(c)(1) certification for a later definitive order | Held: District courts should phrase settlement-stage rulings as preliminary determinations for notice and reserve certification until after the fairness hearing |
Key Cases Cited
- Hohider v. United Parcel Service, 574 F.3d 169 (3d Cir. 2009) (district court may not conditionally certify a litigation class; certification must be a definitive Rule 23(c)(1) determination)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (requirements for class certification and limits on conditional certification discussed)
- Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154 (3d Cir. 2001) (Rule 23(f) permits discretionary interlocutory review and sets guiding principles for when to grant review)
- Sullivan v. DB Invs., Inc., 667 F.3d 273 (3d Cir. 2011) (district court must determine Rule 23(a) and (b) requirements before approving a settlement)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (heightened scrutiny for settlement-only classes and importance of Rule 23(b)(3) criteria)
- Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003) (interlocutory appeal of conditional certification was premature where final approval and certification steps remained)
- Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) (Second Circuit held conditional certification can survive 2003 amendment when requirements of Rule 23 are met)
- In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) (mandamus used historically for extraordinary interlocutory review of class certification)
- In re Fosamax (Alendronate Sodium) Prods. Liab. Litig. (No. II), 751 F.3d 150 (3d Cir. 2014) (court must ensure appellate jurisdiction exists before considering merits)